La Manipolazione Degli Indici Finanziari: Un Illecito in Cerca Di Identità (Manipulation of Financial Indices: A Wrongful Act in Search for Identity)

Abstract

Since 2011, financial indices manipulation of Libor, Euribor and Tibor has beeen representing a very important subject in the media legal discourse. In particular, some of the more influent banks in the world have been concerned with heavy sanctions by U.S.A. and U.K. Financial Authorities in consequence of their involvement in price index fixing in the recent years. The article focuses on the charateristics of the wrongful act (Libor Fixing) and his causal link with economic losses suffered by whom entered in contracts (mortgages, derivative swaps, financial agreements) indexed to manipulated benchmarks. The prognosis of success on civil litigation should be more complex and critical than the one observed in criminal procecution procedures. The analysis underlines the potentially uncertain and amphibious nature of the case, between antitrust law and Securities Law. The most critical subjects are the evidence and tracks of a collusion, and also the role to be attached to the participants in the fraudolent scheme. This point includes an uncertain choice between primary violators and secondary actors as soon as the litigation constists in antifraud class actions lawsuit (ex Rule 10b-5 of the SEC Reg.). The case of Libor manipulation shows that one can be a primary violator without disclosing directly (or failing to disclose) any information to the marketplace, whereas a scheme to defraud can consist in a silent behavior (price fixing). Another point concerns the recent initiatives in U.K. and European Union in the field of financial benchmark manipulation and market abuse. The emerging trend, in particular in EU, is to introduce specific regulations on financial wrongful acts. As a result, EU and his member states policies could lack (or underestimate) actual civil remedies, antitrust policies/criminal sanctions. From a common law experience, the analysis detected a more responsive and dynamic toolkit.